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EXHIBIT 10.1
AMENDED AND RESTATED
XXXXXX SHAREHOLDER AGREEMENT
THIS AMENDED AND RESTATED XXXXXX SHAREHOLDER AGREEMENT ("Agreement") is
made as of this 26th day of June, 1997, among XXXXXXX XXXXXX XXXXX and
XXXXXXXXXXX X. XXXXXX ("Founding Shareholders"), XXXXX XXXXXX, NATIONSBANK,
N.A., a national banking association ("NationsBank"), XXXXXXX X. XXXXXXX, XX.,
as Trustee under the Xxxxxx Stock Trust dated December 28, 1996 ("Trustee") (the
Founding Shareholders, Xxxxx Xxxxxx, NationsBank and Trustee are referred to
herein collectively as the "Shareholders" and individually as a "Shareholder"),
and XXXXXX INTERNATIONAL, INC. (formerly known as Xxxxxx Research Associates,
Inc.) ("Xxxxxx").
Background
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A. This Agreement amends and restates in its entirety the Xxxxxx
Shareholder Agreement entered into on December 29, 1996, among the Founding
Shareholders, Trustee and Xxxxxx ("Original Shareholder Agreement").
B. On December 29, 1996, the Founding Shareholders transferred to
Trustee stock in Xxxxxx. As a condition of such transfer, the Founding
Shareholders required the execution of the Original Shareholder Agreement and
that such stock transferred to Trustee (and any additional stock acquired by
Trustee) be subject to a right of first refusal.
C. In connection with the consummation of the Investment Agreement
between Xxxxxx and NationsBank of even date herewith ("Investment Agreement"),
Xxxxxx has agreed to (i) issue its Common Stock Purchase Warrant ("Warrant")
entitling NationsBank to purchase certain of the shares of Xxxxxx'x common
stock, $0.01 par value per share ("Common Stock"), and (ii) amend and restate
the Original Shareholder Agreement to provide NationsBank with certain rights
and benefits.
In consideration of the premises and the covenants and undertakings
hereinafter set forth, the parties hereto agree as follows:
1. PRESENT SHAREHOLDERS. Xxxxxx represents that as of the date hereof,
the shareholders of Xxxxxx are as set forth on Schedule 1 attached hereto.
2. TRANSFER RESTRICTIONS ON SHARES.
(a) PERMITTED TRANSFERS. A Shareholder may transfer all or a
portion of its shares of Common Stock ("Shares") to a spouse or children or to a
trust for the benefit of the Shareholder, a spouse or children (provided any
such transfer to a trust must be to a qualified trust which will not cause a
termination of Xxxxxx'x Subchapter S Corporation status under the Internal
Revenue Code (the "Code"); PROVIDED, HOWEVER, that as a condition to any such
transfer, the transferee must agree
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in writing that it, its heirs, successors and assigns, shall be subject to and
bound by the provisions of this Agreement.
(b) FIRST REFUSAL.
(i) OFFER TO SELL SHARES. Except as provided in
Section ___, if any
Shareholder (such Shareholder being hereinafter referred to as the "Selling
Shareholder") shall desire to sell all or any of the Shares now owned or
hereafter acquired by it, it must first receive a bona fide written offer to
purchase such Shares and then deliver to Xxxxxx and the other Shareholders a
written notice ("Notice") containing the following information:
(1) The name and address of the prospective
purchaser of such Shares;
(2) The number of Shares that the Selling
Shareholder desires to sell;
(3) The price being offered to the Selling
Shareholder and the terms of payment, and any other terms of
such offer; and
(4) The proposed closing date for the transaction,
which shall be within not less than sixty (60) nor more than
one hundred twenty (120) days after the date of delivery of
the Notice.
For a period of thirty (30) days after the giving of the Notice by the Selling
Shareholder, Xxxxxx shall have the option, exercisable in whole or in part by
notice in writing to the Selling Shareholder and to each of the other
Shareholders, to purchase the Shares that are proposed to be sold, at the price
and upon the terms set forth in the Notice. The Selling Shareholder shall have
no right to vote as a shareholder or director on the decision to exercise such
option, and action on such option may be taken by the holders of a majority of
the outstanding Shares, exclusive of the Shares held by the Selling Shareholder.
A failure by Xxxxxx to give written notice of exercise during such period shall
be deemed a rejection by Xxxxxx of its option to purchase.
(ii) OFFER TO OTHER SHAREHOLDERS. If Xxxxxx does not
exercise the option granted to it above with respect to any of the Shares that
the Selling Shareholder desires to sell hereunder, each of the other
Shareholders shall then have the option to purchase its pro rata portion of the
Shares that will not be purchased by Xxxxxx (based on the number of Shares owned
by such Shareholder in relation to the total number of Shares outstanding, less
all of the Shares owned by the Selling Shareholder), at the price and upon the
terms set forth in the Notice. Such options shall be exercisable by written
notice to the Selling Shareholder and to each of the other Shareholders for a
period of twenty (20) days from the date of express rejection by Xxxxxx of its
option to purchase or the date of expiration of Xxxxxx'x option, whichever is
earlier. A failure by a Shareholder to give written notice of exercise within
such twenty (20) day period shall be deemed a rejection by such
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Shareholder of its option to purchase. If any Shareholder does not exercise its
option to purchase all of the Shares to which it is first entitled, each
remaining Shareholder shall then have the option to purchase all or any portion
of the Shares that will not be purchased by the Shareholders first entitled
thereto, which option shall be exercisable by notice in writing to the Selling
Shareholder and to each of the other Shareholders within ten (10) days after the
date of express rejection by such Shareholders or the expiration of the options
to the Shareholders who did not elect to purchase such Shares, whichever is
earlier. If more than one Shareholder exercises this option, the Shares
available for purchase shall be allocated pro rata among the Shareholders
desiring to purchase such Shares, which allocation shall be based on the number
of Shares owned by each such Shareholder in relation to the total number of
Shares outstanding, less all of the Shares owned by the Selling Shareholder, and
less all of the Shares owned by any Shareholder who does not exercise its option
to purchase any such unpurchased Shares. In determining the pro rata portion of
the Shares that any Shareholder is entitled to purchase, the Shares owned by a
Shareholder shall be neither increased nor decreased by reason of any Shares to
be purchased from or sold by the Selling Shareholder.
(iii) NON-CASH CONSIDERATION FOR SHARES. If any
consideration to be received by a Selling Shareholder from a prospective
purchase of its Shares, as identified in a Notice given in compliance herewith,
is property other than cash, then the price per share for such Shares shall be
measured to that extent by the fair market value (determined as hereinafter
provided) of such non-cash consideration. If non-cash consideration has been
offered to a Selling Shareholder, Xxxxxx and the other Shareholders, if such
parties or any of them exercise their option(s) to purchase the Selling
Shareholder's Shares, may deliver to the Selling Shareholder, in payment of the
non-cash portion of the purchase price for the Shares proposed to be sold, an
amount of cash equal to the fair market value of the non-cash consideration that
has been offered to the Selling Shareholder. For purposes hereof, the fair
market value of non-cash consideration shall in each case be agreed upon by the
Selling Shareholder and the party purchasing its Shares as provided in this
Agreement, or, in the absence of such agreement, such fair market value shall be
determined by an appraisal thereof by three (3) independent qualified
appraisers, one being selected by the Selling Shareholder, one being selected by
the party hereto desiring to purchase the Selling Shareholder's Shares, and the
third appraiser being chosen by the two appraisers thus chosen. The cost of any
such appraisal shall be borne equally by the parties to the appraisal
proceeding. Any closing provided for herein may be extended for such reasonable
period of time as may be necessary in order for a required appraisal to be
completed. In the event of an appraisal pursuant to this Section 2, the parties
agree to be bound thereby.
(iv) CLOSINGS. If Xxxxxx or any Shareholder shall
exercise an option to purchase granted to such parties in this Section 2, the
closing of the purchase and sale transaction shall be held at the principal
office of Xxxxxx on a date designated by the purchaser or purchasers, which date
in no event shall be later than ninety (90) days after the Selling Shareholder
gives the Notice. If there is more than one purchaser of the Shares being sold,
the Selling Shareholder may require that all purchases close concurrently on the
same date.
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(v) RIGHT TO TRANSFER. If Xxxxxx and the other
Shareholders do not elect to purchase all of the Shares that a Selling
Shareholder desires to sell, no election to purchase a portion of such Shares
shall be effective, and the Selling Shareholder shall have the right to sell
all, but not less than all, of the Shares covered by the bona fide offer to the
prospective purchaser named in the Notice; PROVIDED, that the sale is made in
strict accordance with (1) the terms of sale set forth in the Notice, and (2)
Section __ below. In addition, as a condition to any such sale, the purchaser of
the Shares must agree in writing that it, its heirs, successors and assigns,
shall be subject to and bound by the provisions of this Agreement.
(vi) RIGHT TO CO-SALE. In the event the Selling
Shareholder disposes of its Shares to a third party, except as permitted under
this Section 2(b), the Shareholders shall have the right to offer to sell a
proportionate number of Shares to the third party acquiring the Selling
Shareholder's Shares, on the same price and on the same terms as outlined in the
Notice, in accordance with the following procedure:
(1) The Selling Shareholder shall, prior to
sale, give notice to the other Shareholders of its right of
co-sale.
(2) The other Shareholders shall have
fifteen (15) days to determine if they desire to offer Shares
to the third party acquiring the Selling Shareholder's Shares.
In the event any Shareholder elects not to offer for co-sale
its proportionate interest, the remaining Shareholders, other
than the Selling Shareholder, shall be entitled to offer for
sale such interest on a pro rata basis.
(vii) PROHIBITED TRANSFERS VOID. Any purported
transfer of Shares in violation of this Agreement shall be void and shall not
transfer any interest or title to any Shares to the purported transferee. Xxxxxx
shall not be required to transfer on its books any Shares sold or transferred in
violation of any of the provisions set forth in this Agreement or to treat as
owner of those Shares or to pay dividends to any transferee to whom any of those
Shares shall have been so sold or transferred.
3. PREEMPTIVE RIGHTS.
(a) PREEMPTIVE RIGHTS OF SHAREHOLDERS. If, at any time, Xxxxxx
proposes to issue (except in a transaction described in Section 3(b) below) any
of its equity securities (including the Shares) or any securities convertible
into or having the rights to purchase any equity securities (including the
Shares) to any person or entity (which may include a Shareholder) (collectively,
"Equity Securities") other than stock options issued to any Shareholder which
are approved by [all Shareholders/the disinterested members of the Board of
Directors], then, in such event, Xxxxxx shall first offer in writing to sell all
such Shares and/or securities, on the same terms and conditions as proposed by
Xxxxxx to such person or entity, to the Shareholders. Each Shareholder shall
then have the option to purchase its pro rata portion of the Equity Securities
proposed to be issued (based on the number of equity securities, including the
Shares, owned by such Shareholder, on a fully diluted
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basis, in relation to the total number of the Equity Shares then outstanding),
at the price and upon the terms set forth in such writing. Such options shall be
exercisable by written notice to Xxxxxx for a period of fifteen (15) days from
the date of such offer. A failure by a Shareholder to give written notice of the
exercise within such fifteen (15) day period shall be deemed to be a rejection
by such Shareholder of its option to purchase. To the extent that any of the
Shareholders elect not to purchase the full amount of Equity Securities they are
entitled to purchase pursuant to this Section 3(a), the other Shareholders'
rights to purchase Equity Securities pursuant to this Section 3(a) shall be
increased by their pro rata portion, up to the maximum quantity of each class of
Equity Securities set forth in their respective notices to Xxxxxx. The closing
of the purchase of Equity Securities by the Shareholders shall take place within
fifteen (15) days after the expiration of said fifteen (15) day period. Xxxxxx
shall have sixty (60) days from the closing of the purchase of Equity Securities
by the Shareholders to sell the unsold portion of the Equity Securities to other
purchasers, but only upon terms and conditions that are in all material respects
no more favorable to such purchasers or less favorable to Xxxxxx than those set
forth in the Equity Securities offering. In the event that the sale of the
unsold portion of Equity Securities is not consummated within such sixty (60)
day period, Xxxxxx'x right to sell such unsold Equity Securities shall be deemed
to lapse, and any sale of Equity Securities without additional notice to the
Shareholders as provided for in this Section 3(a) shall be deemed to be in
violation of the provisions of this Agreement.
(b) EXCLUDED TRANSACTIONS. The following transactions
shall be excluded from the restrictions of this Section 3:
(i) Any issuance to a non-Shareholder employee of
Xxxxxx of stock options to purchase shares under a bona fide stock option plan
or agreement approved by Xxxxxx'x Board of Directors;
(ii) An underwritten initial public offering of the
Shares under the Securities Act of 1933, as amended; and
(iii) _______________________________________________
______________________________________________________________________________ .
4. ENDORSEMENT ON SHARE CERTIFICATES. Upon the execution of this
Agreement, the certificates of Common Stock subject to this Agreement and any
other Shares of stock transferred or issued shall be endorsed as follows:
"This Certificate is transferable only upon compliance with
the provisions of the Amended and Restated Xxxxxx Shareholder
Agreement dated as of June __, 1997, a copy of which is on
file in the office of the Secretary of Xxxxxx International,
Inc."
5. TERMINATION OF RESTRICTIONS. The restrictions on the transfer of the
Shares set forth herein shall terminate with respect to any [NationsBank]
transferee at the time the Shares
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are registered with the United States Securities and Exchange Commission and
with a national stock exchange or regularly quoted over-the-counter exchange.
6. AGREEMENT BINDING. This Agreement shall inure to the benefit of and
be binding upon the Shareholders and each of their heirs, successors and
assigns. It shall also be binding upon any transferee and their heirs,
successors and assigns of such transferee who has received any Shares.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties as to the subject matter herein contained, superseding any and all
prior or contemporaneous oral and prior written agreements, understandings,
letters of intent or commitment letters.
8. AMENDMENT OR TERMINATION OF AGREEMENT. This Agreement may be amended
or terminated by the consent of all of the Shareholders and Xxxxxx.
9. NOTICES. Whenever a notice is required to be given under this
Agreement, such notice shall be given by registered or certified U.S. mail,
postage prepaid, to the following addresses:
If to Xxxxxx:
Xxxxxx International, Inc.
000 Xxxxx Xxxxx
Xxxxx xxx Xxxx Xxxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: __________________
If to a Founding Shareholder:
Xx. Xxxxxxx Xxxxxx Xxxxx
c/x Xxxxxx International, Inc.
000 Xxxxx Xxxxx
Xxxxx xxx Xxxx Xxxxxxx
Xxxxxxxxxx, Xxxx 00000
Xx. Xxxxxxxxxxx X. Xxxxxx
c/x Xxxxxx International, Inc.
000 Xxxxx Xxxxx
Xxxxx xxx Xxxx Xxxxxxx
Xxxxxxxxxx, Xxxx 00000
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If to Trustee:
Xxxxxxx X. Xxxxxxx, Xx., Esq.
Xxxxxxx, Muething & Xxxxxxx, P.L.L.
1800 Provident Tower
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
If to Xxxxx Xxxxxx:
Xx. Xxxxx Xxxxxx
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If to NationsBank:
NationsBank, N.A.
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Such notice shall be effective when received.
10. JURISDICTION. This Agreement is made pursuant to, and will be
governed by and construed in accordance with, the laws of the State of Ohio
applicable to contracts executed and to be performed wholly within such state.
Each of the parties hereby (a) irrevocably consents and agrees that any legal or
equitable action or proceeding arising under or in connection with this
Agreement shall be brought exclusively in any federal or state court within the
County of Xxxxxxxx, State of Ohio; (b) by execution and delivery of this
Agreement, irrevocably submits to and accepts with respect to its properties and
assets, generally and unconditionally, the jurisdiction of the aforesaid courts,
and irrevocably waives any and all rights it may have to object to such
jurisdiction under the Constitution or laws of the State of Ohio or the
Constitution of the United States or otherwise; and (c) irrevocably consents
that service of process upon it in any such action or proceeding shall be valid
and effective against it if made in the manner provided herein for delivery of
notices hereunder.
11. INVALIDITY. If any portion or portions of this Agreement shall be
adjudged, declared, held, or ruled to be invalid for any reason, such invalidity
shall not be deemed to impair the validity of any other provision of this
Agreement.
12. GENDER AND NUMBER REFERENCES. All references to any gender shall
include all genders; all references to the singular shall include the plural;
and all references to the plural shall include the singular, unless the context
indicates otherwise.
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IN WITNESS WHEREOF, the Shareholders and Xxxxxx have signed this
Agreement as of the day and year first above written.
/s/ Xxxxxxx Xxxxxx Xxxxx
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XXXXXXX XXXXXX XXXXX
/s/ Xxxxxxxxxxx X. Xxxxxx
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XXXXXXXXXXX X. XXXXXX
/s/ Xxxxx Xxxxxx
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XXXXX XXXXXX
NATIONSBANK, N.A.
By: /s/ Nationsbank, N.A.
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Its:
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XXXXXX STOCK TRUST
BY: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxx, Xx., Trustee
XXXXXX INTERNATIONAL, INC.
BY: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Chairman
and Chief Executive Officer
